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The UNC Board of Governors’ Committee on Governance passed a controversial university speech policy Thursday in a standing-room-only meeting.

A controversial university speech policy took a crucial step toward becoming a reality Thursday, passing the UNC Board of Governors’ committee on governance unanimously.

The committee on governance met in Chapel Hill Thursday, part of the the first of two full-day meetings for the full board. The policy will need to be reviewed and passed by the board at its next meeting.

“I feel like we have a consensus free speech policy that will be a benefit to the university,” said Governance Committee Chairman Steve Long.

The committee did spend weeks reaching out to students, faculty and staff at the university – and the latest draft policy does reflect some concessions to their concerns. But students, faculty and staff members said Thursday they do not think there is a need for the policy.

“We sent them a statement with our concerns and they did listen to us and there were some concessions,” said Gabriel Lugo, chair of the UNC Faculty Assembly. “But overall, we think we have systems in place now that have worked very well for us. We don’t agree that if a student or a faculty member is part of a disturbance and is arrested, they should be punished twice – criminally and then through the university.”

“But we are good citizens and we understand this will be the policy,” Lugo said.

Lugo said faculty members were happy to see some concessions, including a change to the policy’s language that would allow individual schools to decide on punishments for those found in violation of the policy rather than a system-wide mandates of specific punishments. That was a change also sought by civil liberties groups.

The committee also firmed up some of the ambiguous language in the policy, giving specific examples of things that would constitute a “substantial” disturbance. But students, faculty and staff members said they’re still concerned the policy will be misused to target political speech with which the conservative General Assembly and Board of Governors disagrees.

“This is as inclusive a policy for vetting a policy as I’ve seen,” said board member David Powers. “A lot of compromises were made to get to a final policy.”

“There’s no way you can satisfy everyone,” Powers said. “But everybody has had a chance to have their say.”

As a controversial UNC system speech policy continues to take shape, the UNC Employee Forum met Wednesday to voice their concerns.

The UNC Employee Forum met Wednesday, discussing a controversial campus speech policy now being crafted by the UNC Board of Governors.

The forum, held at the Chapel Hill campus’ Sonja H. Stone Center for Black Culture and History, came ahead of the Thursday and Friday meetings of the full board at which they will discuss the latest draft of the policy.

With few exceptions, the employees vented fears and frustrations over the process by which the UNC Board of Governors has crafted the policy and its possible consequences.

“In my opinion it’s a slap in the face from the General Assembly,” said Kathy Ramsey, vice chair of both the Employee Forum and the Carolina Black Caucus. “It’s a slap in the face especially to Carolina, on top of what they’ve done to the Civil Rights Center and the Poverty Center. It’s another intimidation tactic.”

The General Assembly and Board of Governors have shown a willingness – even an eagerness – to use policy to punish political adversaries, Ramsey said – so it’s very difficult for the UNC community to believe that the proposed speech policy will be evenly and justly applied.

And how the policy is applied will be everything, a number of employees said. That’s because the draft language leaves enough ambiguity about what sort of speech or demonstration might cause a “substantial” disruption, which would lead to punishment. The system for punishment is itself ambiguous, said UNC General Counsel Mark Merritt. It sets out specific punishments and a “three strikes, you’re out” policy, Merritt said – but then says individual campuses may choose to discipline those found in violation of the policy differently, if warranted.

That ambiguity has caused groups like the American Civil Liberties Union and Foundation for Individual Rights in Education to express concern with how violations will be handled and how the policy will be applied.

Though the newest draft of the policy did away with a section that laid out uniform punishments across the system, it’s far from clear that letting the 16 campuses decide for themselves how to deal with violations of the policy will lead to uniform application of the policy – or please the Board of Governors and General Assembly.

It’s also not clear how the universities will go about dealing with violations, said Katie Turner.

Turner, from the university’s office of faculty governance, said there is already a complicated system of channels for dealing with students and faculty accused of violating university policies. The new draft policy mandates that each campus appoint someone to make sure the free speech policy is carried out properly – something that will have to be built into the current structure without any additional staff or funding from the General Assembly.

“Some things are going to have to be completely overhauled to accommodate this,” Turner said. “That’s going to mean a lot of resources for something that doesn’t actually seem to be a problem – and those resources are going to have to come from somewhere. Right now everything is tight – budgets are tight, time is tight.”

Several employees pointed out that UNC has an excellent reputation for upholding freedom of speech – something reflected in their “Green Light” rating from FIRE. Given that, they said, there does not seem to be a reason that is not political for putting this policy in place.

“It appears the only reason to have this policy is because the General Assembly has said we have to have this policy,” Hill said.

Clare Counihan, a program coordinator for faculty and staff, shared that concern.

The policy – and the state law that prompted it – were born in the wake of controversies over conservative speakers like white supremacist provocateur Richard Spencer being shouted down and prevented from speaking at public universities. Before that happened the General Assembly’s Republican majority had shown little interest in getting involved in the issue of free speech on campuses. Given that context, Counihan said, it is inevitable that the policy will be seen as a way of intimidating or punishing demonstrators on the political left.

Merritt, the UNC General Counsel, said he will do his best to be sure that whatever policy is finally approved is never applied in a way that violates the First Amendment.

“That supersedes any state law or policy,” Merritt said.

In the meantime, he said, he will take the concerns of the faculty and staff to the Board of Governors.

The Board of Governors holds committee and full board meetings in Chapel Hill this Thursday and Friday, November 2nd and 3rd.

The board will meet in regular session 9:00 a.m. on Thursday and 9:00 a.m. on Friday in the Board Room of the UNC Center for School Leadership Development at 140 Friday Center Drive in Chapel Hill.

The Foundation for Individual Rights in Education, a Philadelphia-based nonprofit that advocates for civil liberties in academia, released a report in December on how 461 U.S. universities stack up on free speech. The organization judges campuses with its own rating system, with designations of green lights, yellow lights or red lights.

Its study, “Spotlight on Speech Codes 2018: The State of Free Speech on Our Nation’s Campuses,” gave mediocre or poor marks to most universities, but said free speech policies have significantly improved over time.

Fifty-nine percent of the colleges were given yellow lights, denoting policies that are either too vague or restrict speech in narrow ways. Nearly one-third of campuses were given red lights for policies that substantially restrict free speech. Only 35 colleges managed to earn a green light, the group’s highest rating, for policies that protect free speech on campus.

North Carolina had eight green light campuses in the 2018 study – more than any other state. The campuses earning that designation were: Appalachian State University, Duke University, East Carolina University, N.C. Central University and UNC-Chapel Hill, UNC-Charlotte, UNC-Greensboro and UNC-Wilmington.

“North Carolina, as far as having policies that respect students’ free speech go, is a national leader,” said Samantha Harris, FIRE’s vice president of policy research.

That begs the question then…why did N.C. lawmakers, using FIRE’s reports, come to the conclusion that the state of campus speech was so in peril that the UNC system had to create a policy that students, faculty, staff and civil liberties advocates worry can be used to crack down on free speech?

Michael Behrent, vice president of the North Carolina chapter of the American Association of University Professors, said the answer is simple.

“FIRE’s efforts to construe the issue of campus free speech very narrowly, reducing it to the fight against so-called political correctness, actually contributes to efforts to limit free speech on campuses, which, for the most part, is alive and well,” Behrent, an Appalachian State University history professor, said in an emailed statement. “FIRE’s reporting fuels the attitudes that resulted in the passage of the ‘Restoring Free Speech’ law last summer and the recent Board of Governors’ policy.”

Samantha Harris, FIRE’s vice president of policy research, disputes that characterization. She says the new policy will have to be used properly and FIRE will be watching to see that it is.

“It’ll just remain to be seen how the university enforces it,” Harris said. “If it is enforcing it on people for engaging in peaceful protest, who are exercising their right to free speech in a legitimate way, then that would obviously be very problematic. But when protest crosses the line into what we call ‘a heckler’s veto,’ when you are actually preventing someone else from being heard, then that is not a valid exercise of the right to free speech. Of course, the question is how it will be handled in those sort of gray areas.”

She added, “It will be very important that they err on the side of protecting free speech.”

It didn’t come as a surprise to many that the American Civil Liberties Union expressed concern with a new a policy to “restore and preserve free speech” on UNC campuses.

The policy, prompted by a nationwide conservative movement, is being crafted by the GOP-dominated UNC Board of Governors, leading civil liberties advocates to worry it may be applied unevenly and actually create a chilling effect on speech.

But this week, the Foundation for Individual Rights in Education (FIRE), a non-profit that supported the state bill that prompted the policy, now says it also has concerns about the direction being taken by the Board of Governors.

FIRE, an organization much celebrated on the political right, also proposed the creation of such a policy for the University of Wisconsin system – but ended up opposing the policy actually created for the system by its Board of Regents.

That University of Wisconsin policy is admired on the UNC Board of Governors and was cited by board members William Webb and Steven Long as the basis for parts of the current draft policy for UNC.

At issue, according to Laura Beltz, FIRE’s program officer for policy reform: the section of the draft setting up minimum sanctions for those found in violation.

“We are concerned that mandating a minimum punishment of suspension after two offenses could lead to disproportionate, unduly harsh punishments,” Beltz told N.C. Policy Watch. “Instead, institutions should have the ability to impose sanctions for disruptive conduct based on the context and facts of each case.”

FIRE would prefer a second option laid out in the draft, which would presume suspension after a second offense but would let the individual institution determine if a different sanction is warranted.

At a Board of Governors subcommittee meeting earlier this month, Governance Committee Chairman Steven Long said he’s been disappointed by individual chancellors’ reaction to protests he thinks cross the line and would prefer a uniform sanction to allowing individual campuses and chancellors to decide on sanctions.

This week, the ACLU of North Carolina expressed concerns about the vague nature of the draft policy, saying a “material and substantial disruption” could be interpreted in many way.

Beltz said FIRE finds the “material and substantial disruption” standard acceptable – but it will need to be properly applied.

“However, if the policy is applied to sanction expression that does not infringe upon the rights of others, such as protesting outside of an event or staging a brief or non-disruptive walkout of an event, FIRE will oppose such an application,” Beltz said.

“State legislature efforts on First Amendment issues are hard to generalize about — state legislation can often provide a helpful clarification on aspects of the law (like legislation banning free speech zones),” Beltz said. “However, state legislatures can also overstep their ground and can threaten academic freedom rights by attempting to set the agenda for classroom instruction, or by trying to take away the discretion of institutions to make judgment calls based on particular circumstances (like the Wisconsin bill’s mandatory sanctions). ”